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THE 



PULPIT AND ROSTRUM: 



DEVOTED TO 



PHONOGRAPHIC REPORTS 

OF 

SERMONS, ORATIONS, 

LECTURES, ADDRESSES. 

ANDREW J. GRAHAM ANlJ CHARLES B. COLLAR, REPOliTEnS. 



YOLITME II 



{} 



NEW YORK: 

E . D . W A R K E R , P U B L I S II E R , 

185 CtRA>M) street. 

18G1. 



^ 45"2 



Entered, according to Act of Congress, in the year 1S62, by 

E. D. BAEKEK, 

In tliC Clerk's Office of the District Court of the United States for the Southern 
District of New York. 



IN E/vCHANGJS 

OorneU aaivi 
2 f tISOS 



Davies & Kent, 

bteheotypeks and electkotvpers, 

113 Xdssau Streef, Xew Yorl: 



THE SOUTHERN PtEBELLIOi^, 

AND THE COXSTITUTIONAL TOWERS OF THE RE- 
PUBLIC FOR ITS SUPPRESSION". 



A71 Address delivered by Hon. Henry Winter Bavis, before the Mercantile 
Library Association 0/ Brooklyn, ^^''ov. 26, 1861 



Mr. President and Gentlemen of this Association — In the 
corner-stone of the soutliern wing of the Capitol at Washington, in 
the handwriting of Daniel Webster, are these words : " If, therefore, 
it sliall be hereafter the will of God that this structure shall fall 
from its base, that its foundation be upturned, and this deposit 
brought to the eyes of men, be it then known that on this day the 
Union of the United States of America stands firm, that their Con- 
stitntion still exists unimpaired, and, with all its original usefulness 
and glory, growing every day stronger and stronger in the affec- 
tion of the great body of the American people, and attracting more 
and more the admiration of the world." That deposit is hardly ten 
years old. Daniel Webster has not been gathered to his fathers 
ten years, and that stone is rocked by the earthquake of revolution. 
Those institutions whose success he supposed he was announcing 
to a distant futurity, seem now already to be losing their hold ou 
the affections of the people and the respect of nations abroad. 
Were he now called on to re-write that solemn proclamation to pos- 
terity, he would lower its lofty tone. He would say : 

" The Union of the United States of America is now assailed and 
shaken to its foundations ; their Constitution has ceased, in a great 
measure, to command the confidence of the people of America or 
the admiration of the world, and the people themselves seek after 
a master." 

The path of a nation in search of a master is broad enough and 
of varied aspect. Nations have sought him in the imperfec- 
tions of their national institutions ; in the madness of civil strife ; 
at the hands of foreign intervention ; in the degeneracy and corrup- 
tions of their own manners ; in appeals from the ballot-box to the 



220 THE SOUTIIEP.N EEBELLIOX. 

sword at the bidding or for the advancement of personal ambitioii. 
The people of America now exhibit more tlian one of the symptoms 
of that fatal hunt. One great region is marching m the path of 
Mexico to the overthrow of a government it has ceased to con- 
trol. The other great region is following in that deadly path— 
unconsciously perhaps, not so palpably, but not less surely, not less 
fatally — by the blind madness with which they throw down every 
barrier liberty has erected against arbitrary power, in their reck- 
less eagerness to preserve the integrity of the nation. They see 
the gulf, and tliink nothing too precious to fill it. They are ready 
to lay their liberty a sacrifice on the altar of victory. 

When Daniel AYebster died, American liberty looked strong and 
was boastful of its strength ; when President Buchanan left the 
AVhite House, American liberty was like Herod, eaten of worms 
beneath his royal robes — and ready to give up the ghost. The 
foundations of the constitutional edifice Avere already secretly sap- 
ped ; the mortar was already picked from the stones ; and when 
the judges of the Supreme Court pronounced the Dred Scott judg- 
ment, the very caryatides of the Constitution were seen to bend 
beneath the unusual pressure ; and the whole edifice seemed, to 
thoughtful eyes, to rush to its ruin. The sap went on more earnest- 
ly, more vigorously ; and as the catastrophe approached, all the 
energy and audacity seemed on the side of the assailants, all the 
doubt, all the hesitation, all the timidity on the side of the defend- 
ers — paralyzed at the awful aspect of the national dissolution. 
Then it was that tlie enemies of the Eepublic thought their day 
■was come ; they rushed openly to the assault of the breach they 
had been so long and so secretly preparing. In their exulting con- 
fidence they boastfully shouted : 

" York is joined to Bolingbroke, 
And all your northern castles yielded up, 
And all your southern gentlemen in arms 
Upon his party." 

And the sovereign people thought their power doomed when 
breathless messengers from the South gasped out : 

" White beards haA'e armed their thin and hairless scalps 
Against thy majesty ; and boys with women's voices 
Speak big, and clap their female joints 
In stiff, unwieldy arms against thy crown ; 
Even thy beadsmen learn to bend their bows 
Of double fatal yew a^tiiiist thy state ; 
Yea, distaff women nmnage rusty bills 
Against thy seat; both young and old rebeL" 



TUE SOUTHERN REBELLION. 3I7 

Bold men thought the last day of the Republic was come. Bad 
men witlidrew to seize their part of the dismembered heritage. 
1'imid friends gathered round tlie bed of the dying patient, and 
tallced hopefully of peaceful dissolution ; and when rash men whis- 
pered, even with bated breath, of coercive remedies, they were put 
far off lest the shock of the suggestion might hasten the ca- 
tastrophe. 

And then an unaccustomed sound echoed over the laud — a 

strange event— a new thing under the sun — American arms, point- 

■ ed cannon at American breasts— American shot shattered an 

American fortress — American hands dragged down the standard of 

the Republic and boasted that they first had trailed it in the dust. 

That touched a nerve of exquisite sensibility which vibrated to 
the heart of the nation ; and it rose from its bed of death and cast 
off its premature grave-clothes and challenged its right to be a na- 
tion of history. From the Pacific to the Atlantic, living men 
stretched forth eager hands for arms to defend the Republic. 

And then the people passed from atony to paroxysm in a day. 
Action, action was the cry ! 

The people were summoned to action — action upon a new the- 
ater — action upon new principles and for new purposes — action on 
new paths, diflerent from the recognized and used paths over 
which the American people had in this generation trodden — action 
at the bidding of one stern and irresistible impulse that seemed for 
an instant — nay, for months — to blind the American people and 
make them forget the salutary principles of the Constitution which 
was framed after the experience of one revolution, and is competent 
to carry the nation through another revolution. They supposed, 
because they had not hitherto been called to deal with the great 
question of the suppression of insurrection — the guarantee of re- 
publican government to the States — the assertion of the supreme 
authority of the United States — they supposed that laws were 
meant for times of peace, that constitutions were only to be obey- 
ed in courts of law — that now fury might minister arms, that 
wrath might be the measure as well as the instigation to what is 
allowable to might. The maxims of the hour, urged by the press 
and the people on those in power, were, " Give them as good as 
they send — do as they do — make those acts against which you pro- 
test the measure of your conduct — we can not afford the protec- 
tion of the laws to traitors — the laws are silent in the midst of 
arms — necessity is above all law — the safety of the people is the 



318 THE SOUTIIEKN KEBELLION. 

only law." And these maxims, nnheard of before as American 
law, unheard of before upon American hustings, unheard of in the 
councils of legislation — I need not say never dreamed of in the 
courts of justice— these maxims have in a great measure ruled the 
Government in its dealing with the existing troubles — ruled the 
Government, in a great measure, in the modes in which it has at- 
tempted to deal with the great and terrible rebellion that we are 
called upon to suppress — ruled it, not at its own suggestion or in- 
spiration — not against the will of the people ; but the people leading 
the Government on, urging it on, prompting it, rejoicing over every 
arbitrary act, calling for more vigorous measures, when the vigor 
had already, in more than one instance, overstepped the bounds of 
law ; seeing nothing but the enemy before it, and supposing that 
enemies of laivs might be subdued by disregard of the fundamental 
principles of the Government. I do not think I have overstated 
the case. 

Certainly, it is not my disposition to overstate the case. I do 
not know any one who is more interested — no one here, cer- 
tainly, is so much interested — in the suppression of this rebellion 
h,s I am personally. You see the conflagration from the dis- 
tance ; it blisters me at my side. [Applause.] You can survive 
the integrity of the nation; we in Maryland would live on tlie 
side of a gulf, perpetually tending to plunge into its depths. It is 
for us life and liberty — it is for you greatness, strength, and 
prosperity. 

If you are interested, still more am I; if illegal measures are ne- 
cessary^ for salvation, I am more tempted than you to resort to 
them ; and yet I desire to say that there is no circumstance con- 
nected with all the difficulties we are called upon to deal with — 
nothing, in my sight, so threatening in the future — nothing which 
I find myself so unable satisfactorily to contemplate, as the temper of 
the public mind in dealing with this great rebellion. Not that I 
have any tenderness for the parricidal hands that have lifted wea- 
pons against the heart of the nation — let them perish ! [Applause.] 
But in their grave I do not wish to see American liberty buried. 
It is time that the energy of the nation, having now been aroused, 
her embattled hosts lining the whole border, flaming with the con- 
flict, by whose light we read that the nation will not die a dog's 
death and will not perish of rottenness ofl:' the face of the earth — it 
becomes us now to turn our eyes to the principles upon which 
the contest is to be waged — to hold those in authority responsible, 



THE SOUTHERN REBELLION. 319 

not merely for energy, but for legality and constitutionality — to si- 
lence the sneer with which men are met when they recall their 
rulers to the limits of law and the Constitution. Let them under- 
stand that the American Government will not be so degraded in 
the eyes of history as to be driven to the necessity of inaugu- 
rating revolution for the purpose of suppressing insurrection. 
[xVpplause.J 

They who speak about extraordinary methods — of the necessity 
of usurpation — of the necessity of neglecting the "technicalities of 
law," as they politely term them — the necessity of departing from 
all " red-tapeism," which is the ordinary phrase to describe now 
the regular operations of the Government, conducted by wise men — 
these men must be taught (and it is for gentlemen like you to teach 
them) that it does not prove a man is disloyal because he thinks 
the Constitution better than they do, not only powerful in peace, 
but powerful in war ; that its aegis is not only so broad as to pro- 
tect the people in times of peace ; but in the midst of civil war, the 
surest protection ; in the face of national disaster, the surest refuge. 
[Cheers.] 

Let us review some of the measures which have been resorted to 
by the Government in the name of the suppression of the rebellion, 
and with the accord of the people, and see where in six months we 
have drifted before the storm of war. If it is usurpation, it is usurp- 
ation against a willing people. If it is illegal, it is illegality 
prompted by the people. But it is equally certain that the acclaim 
of the people is the most dangerous symptom. 

'Wq have seen in the midst of the American Eepublic, in the 
midst of the nineteenth century, after more than eighty years of 
republican rule, under a plainly- written Constitution — we have 
seen a republican administration assume the right to declare and 
execute martial law. We have seen a military commander ia 
charge of a great and important district, witliin two months, I be- 
lieve, after Congress had adjourned, issue a proclamation inaugu- 
rating, formally, martial law over two thirds of the State of Mis- 
souri — threatening with death, at the dictation of a drum-head court- 
martial, any one caught in arms within the district prescribed by 
his will. We have seen him assume the right to disregard the act 
of Congress ere the ink w^as fairly dry upon the parchment, and 
to confiscate property which Congress, by omitting, said could not 
be confiscated. We have seen (and those who have seen them 
must have laughed) deeds of manumission signed, " John C. Fre- 



320 THE SOUTHERN EEBELLION. 

mont, Major-Gcneral-Commanding." [Applause and hisses. A cry, 
" Three cheers for Fremont !" and cries " For shame !"] 

Free speech exists where I speak. [Tremendous applause.] 

I have seen tempestuous assemblies before in my day. 

Nay, more, I have seen, likewise, statements that three or four 
freemen of America have been convicted before a court-martial in 
the State of Missouri, presided over by a colonel of Illinois volun- 
teers — that is the judicial tribunal— convicted of being in arms 
against the United States — that is treason — and sentenced to hard 
labor during the war. 

The President, with the advice of the chief law officer of the 
Government — a gentleman for whom I entertain, per^onally and 
politically, the very highest regard — has under the pressure of the 
emergency of the times asserted a right in the President, and the 
President has acted upon it in various instances, to suspend the 
writ of habeas corpus. [Applause.] And under this usurped power 
the President has arrested or allowed to be arrested many freemen 
who were not in arms, and had not been in arms, against the 
United States, and therefore were not fit objects of the military 
power vested in the President by Congress; has refused to submit 
the causes of their arrest to the judicial tribunal, even in New 
York, and has incarcerated them in fortresses that they might be 
out of the way of process. 

"We have seen a judge of the highest court of record in the Dis- 
trict of Columbia held prisoner in his house, with a soldier march- 
ing up and down before the door, witli bayonet on his shoulder. 
[Cries of " Serve him right ! — serve him right !"] 

We have not yet reached the question w-hether it has served him 
right or not. [Applause.] About the fact there is no doubt ; that 
there was no sworn statement against him, there is no doubt; that 
the ordinary formalities of law were not pursued, there is no doubt. 
If he was guilty, let him be punished by law ; if he was bearing 
arms, or about to bear arms, let it be known, and the world will 
justify the act. [Applause.] 

We have seen, likewise (and when v.-e rem.cmber that it is tha 
middle of the nineteenth century, we may very v»'ell be startled at 
the very reference), we liave seen at least one newspaper— probably 
more than one newspaper — stopped because of the character of its 
articles. We have seen more than one newspaper — (they do not 
express my sentiments) — we have seen more than one newspaper 
excluded from the benefit of the mails without authority of law. 



THE SOUTHERN KEEELLIOX. 001 

TVe Lave seen a provost-marslial — the police officer of a camp — 
inaugurate a civil court in Alexandria, Va. ; and (I presume 
I address not a few of the mercantile gentlemen of JSTew York), 
if the papers have not again misled me, I think I saw a few days 
ago that the Chamber of Commerce had suggested to the President 
that he should vest authority in the provost-marshal to continne that 
illegal and usurped jurisdiction. [Cries of " Good," and applause.] 

We have seen executed — as nothing of the kind has been 
executed in any despotic country of Europe, and with a complete- 
ness and precision, secrecy and dispatch, that would have done 
honor to the chief of police of France — the seizure of all the tele- 
grams in all the telegraph-offices, from one end to the other of the 
American Republic, I believe, in one day. [Loud applause.] 

We have seen, I believe, without any authority of law — we have 
seen an order from the Secretary of State, saying that no man 
shall leave the United States without a passport — that is, by his 
leave. [Renewed applause.] 

IsTow, these things are not cast in the teeth of anybody, nor 
stated for the purpose of crimination. I use them historically; I 
use them for the lesson they teach ; I use them to bring before you, 
men of America, where you this day stand after your republican 
government has been in full and blessed operation for over eightj 
years. 

These measures have been executed without any authority of 
law. Some of them might have been authorized by Congress; but 
Congress had just adjourned without having authorized them. 

Over these measures of the Executive there is a strange agree- 
ment between the friends and the enemies of the Government. 

The enemies of the United States Jiave tiiken the Constitution 
under their special protection, the more easily to destroy it. They 
deny the constitutionality of every measure for the suppression of 
the insurrection, and confound the arbitrary and the legal in one 
indiscriminate outcry against usurpation and oppression. 

The friends of the Government apparently agree with them in 
their denial of the sufficiency of the Constitution for the crisis, and 
propose to eke out its omissions by the law of necessity. 

I agree with neither of them. Both are wrong, and either view 
is equally fatal to the existence of the Government. 

The Constitution does vest in Congress adequate power to sup- 
press every insurrection. 

The Constitution does not vest in Congress or the President arbi- 



322 'T^^ SOUTHERN IlEBELLION. 

traiy or unlimited power for that or any other purpose. Now, if 
the constitutional powers of the Government are not sufficient for 
the suppression of the rebellion — I mean the ^[onstitutional powers 
of the Government, not construed by the standard of South Caro- 
lina, but measured by the standard of Daniel "Webster, measured 
by the'^standard of Henry Clay [applause], measured by the stand- 
ard of Abraham Lincoln, who differs in nothing from either of those 
great men [applause] — if the Constitution of the United States does 
not confer power upon the Government to deal with a great rebel- 
lion like this, then, gentlemen, I wish you to draw your conclusion. 
Mine is, that the Government of George Washington has failed ! 
[Hisses, and cries of "No!"] If the Government that he founded 
can not deal with the events before it, it is not an inference of 
logic, it is the verdict of history, it has failed. [Hisses.] And 
hissing don't change the verdict. [Laugliter.] Or else the hiss is 
to be interpreted iu this sense — that the Government has not 
failed, although it does not afford power to deal with the rebellion, 
which yet it is its duty to suppress. That argument is worthy of 
a hiss ! I say, gentlemen, if the Constitution does not furnish 
these powers, then the people of the United States are in the face 
of another revolution. If you can not find, within the limits of 
the law written down, the mode and method by w^hich you are to 
stamp out this rebellion, by what law is the President to be 
guided ? 

A Voice — The law of self-preservation. 

Mr. Davis — That is the law of Louis Napoleon. 

A Voice — The law of military power. 

Mr. Davis — Yes, the law of Julius Caesar — the law of the master 
over the slave. I do not know- what you think of George AYash- 
ington, but I shall not scandalize his memory by such a suggestion 
until, witli all the lights before me, I shall have read the law ho 
proposed for the government of the Republic, and see, with the 
light of experience, tlie rulings of the courts, the opinions of great 
men, and the necessities of national life, wdiether we can not liud 
on the face of the Constitution, without making ourselves slaves 
(for it is to be a slave to be bound to obey the will of anybody be- 
yond the limits of law) — a republican way to preserve at once the 
nation and the liberties of the people. [Applause.] 

And I say, in the first place, that martial law, whatever else is 
allowed, and while in my judgment the authority vested in the 
United States, api)lied in its proper forms and described by its con- 



THE SOUTHERN EEEELLIOX. 303 

stitntional language, is ample — I say that martial law, in any sense 
in which it is known to the history of the world, is something 
which is excluded from our system, and which we ourselves and 
our forefathers have been careful to exclude, because an arbitrary 
exercise of discretion could not be safely vested anywiiere in our 
Government, Why, what is martial law? The people are all of 
them crying out for martial law. If tliey mean the direction of 
military power against armed opposition — the direction of the mil- 
iary power to disperse military resistance — why don't they use the 
language of the Constitution, and speak of "calling out the militia 
to suppress the insurrection ?" But if they use the words " martial 
law," men of the sword will interpret it in the only sense in which 
it is known to the history of the world ; and Wellington has defined 
it, " It is the will of the commander-in-chief." Does the Presi- 
dent, of his will, possess the power to declare, to inaugurate, or to 
enact martial law? Unless it is the perpetual law of the Eepub- 
lie, it can not be enacted by him, nor declared by him, nor declared 
by anybody that he may authorize to declare it, because the 
Constitution says — and this is a war for ikhe Constitution as 
well as for the Union — the Constitution says that "all legislative 
power herein granted is vested in Congress." Then the Presi- 
dent can not proclaim it. Can Congress proclaim it ? Wljy, what 
is martial law ? Mere vrill, limited by no definition — controlled by 
nothing except the will of the commander-in-chief — his discretion 
under the circumstances — his determination to allow and to for- 
bid anything — the right to judge people by court-martial — the 
right to order men to be shot down by a file of soldiers for wear- 
ing a red- and- white cravat — the right to disregard the limits of 
the Constitution. It is blind fate. It is enacted at the dictation 
of necessity, and necessity owns no law. It is proclaimed in the 
name of the public safety — it is the annihilation of every guarantee 
of the public liberty. With us our Constitution, framed by George 
Washington, is the great safeguard of the country. The safety of the 
people is the supreme law ; but that Constitution is the safety of 
the people — the Constitution is that supreme law. Above it there 
is no necessity, beyond it there is no law, outside of it there is no 
security. That Constitution does not use the word martial law. 
It does not vest authority to declare martial law anywhere, in any 
body, under any circumstances. It professes to provide for every 
necessity of national life, and it forbids martial law ; for it forbids 
arbitrary trials, it forbids any conviction for crime but by a ju.ry, 



324 THE SOUTHEEN EEBELLIOX. 

any trial but before the judges and courts it has provided, yet 
martial law has tried freemen for treason by a court martial. It 
forbids arbitrary confiscations of property, yet martial law has 
already executed arbitrary confiscations. It forbids arbitrary in- 
vasions of the right of personal freedom, yet men who had off^ended 
against no law now are held by martial law, and in spite of the law 
of the land. 

Yet the Constitution has not overlooked grave crises such as that 
we are now passing through. It provides, under proper sanctions 
and with proper limitations, for such emergencies ; but it carefully 
forbids this arbitrary discretion, which British freemen found in- 
compatible with their safety in the hands of the king, and which 
our fathers knew would \)& fatal to our liberty in the hands of the 
President, and too dangerous to be intrusted even to the discretion 
of Congress. They knew what martial law was, for they rebelled 
against it as their English ancestors had. 

Martial law is not now for the first time supposed to be neces- 
sary ; it has been often imposed under that pretext in the old home 
of liberty, and ther^iit has been repealed by arms and forbidden by 
laws written in royal blood. Martial law had been thought neces- 
sary to prevent the dispersion of Papal bulls or traitorous libels 
against the Queen. It had been thought necessary for the suppres- 
sion of sundry great unlawful assemblies, that such notable rebellious 
persons be speedily suppressed by execution of death, according to 
the justice of martial law ; and Charles I. had thought it necessary 
for his purposes to issue commissions to try not only soldiers, but 
other dissolute persons who might commit murder or other out- 
rage or misdemeanor wiiatever — just as Fremont thought it neces- 
sary for the quiet of Missouri to suppress such outrages — by the jus- 
tice of martial law. But the Commons of England, by the Peti- 
tion of Right, compelled the revocation of such commissions, and 
forbade them for the future ; because no man ought to be "judged 
to death but by the laws estailisJied in the realmy And our 
fathers were fresh in this history when they formed our Constitu- 
tion and incorporated among its solemn enactments these great 
prohibitions of arbitrary power which is the spirit of martial law. 

The Commons of England had prohibited to the Crown the arbi- 
trary right to seize the property of the subject, or withdraw his 
personal liberty from the cognizance of the courts even on a 
commitment by the special command of the king — or to try liira 
by commission of martial law, contrary to the laws of the hiiul; 



THE SOUTDEEN REBELLION". 325 

and our fathers took from that petition their great safeguards and 
placed them beyond and above even the legislative will of Con- 
gress. 

Tlie Constitution declares that the "judicial power sliall be 
vested in our Supreme Court, or in such inferior courts as Congress 
may ordain." 

The President, then, can't establish courts-martial. 

" The judges of loth the supreme and inferior courts shall hold 
their offices during good behavior." 

Neither Congress nor the President, then, can make a military 
officer a judge during will, nor a provost-marshal a civil court. 

" The judicial power shall extend to all cases under the Consti- 
tution and laws." 

The courts of law, therefore, alone can take cognizance of any 
crime against the United States. 

" The trial of all crimes, except in case of impeachment, shall be 
by jury." 

An Illinois colonel can not, therefore, try any one for any crime. 

" No one shall be held to answer for a capital or otherwise in- 
famous crime, unless on a presentment or indictment of a grand 
jury, excqjt in cases arising in ilie land and naval service.''^ 

A man can not then be tried by any court-martial, unless a sol- 
dier or sailor; and Congress is especially authorized to make rules 
for the government and regulation of the land and naval forces ; 
and but for this, no soldier could be tried otherwise than by a court 
of law. 

" Congress shall make no law abridging the freedom of speech 
or of the press." 

Even Congress is prohibited from suppressing any newspaper ; 
how can the Executive claim the right ? 

The fathers of the Constitution assumed that the hadeas corpus 
■w^ould protect our liberties; but they were unwilling to leave that 
to the discretion of Congress ; and they therefore made it perpetual 
by prohibiting its suspension even, except when in cases of rebel- 
lion or invasion the public safety may require it. 

Congress has not suspended it ; it is therefore the right of every 
man confined contrary to law. 

It is perhaps to be regretted that Congress did not at its late 
session suspend that writ in a portion of the United States and give 
the President. a wider power of arrest than the laws now allow — 
subject to such safeguards as might protect innocent people from 



32G '^IIE SOUTHERN EEBELLION. 

vexatious, or mistaken, or malicious arrests ; but Congress tliougljt 
otherwise — and that confined tlie President to the limits of the mil- 
itary power conferred on him for the suppression of the rebellion ; 
and that extends only to persons in arras, or those actively aiding 
and abetting thera against the Government. Such persons are 
liable to arrest by military authority under the law of Congress. 
Every one else is amenable only to the judicial tribunals and un- 
dev judicial forms. 

These provisions exclude martial law and all arbitrary discretion 
— all excej)tional and temporary tribunals — all executive power 
over the liberty of the citizen. 

If the Government can not meet the necessities of the time with- 
out transcending these limits, then American rej)ublicanism has 
failed. 

If a discretionary power over the liberty of the citizen, or a righ* 
to try him by exceptional tribunals is to be tolerated, then we are 
on the eve of a more dangerous revolution than the one we have 
undertaken to suppresii. 

We have abandoned the attempt to reconcile liberty with a gov- 
ernment of law, national existence with the supremacy of law ; we 
have been driven to invoke the principle of executive discretion in 
the last resort, and at its will to suspend every guarantee written 
down in the Constitution to protect the liberty of the individual 
against executive power. 

If it were clear that the national existence demands this sacrifice, 
while it might be yielded, it would be not the less certain that our 
system of government has failed. 

But if it be not so demanded, and yet the people from negligence, 
or indolence, or weariness of the perpetual demands on their time 
and attention for the actual conduct of the Government by law and 
on its own principles, tolerate or invite these intrusions of arbitrary 
will on the domains of law — whether those intrusions result from 
the indittcrence of those in power, or their obedience to popular 
clamor, then it is not less certain that our Governmenthas failed in 
fact — failed because the people lacked republican spirit, energj-, 
and vigilance. 

And if this system of laic have failed, there is but one alternative. 
"We pass from the constitutional freedom of America to the demo- 
cratic despotism of France. To that all free government tends in 
this age. Only England and the United States have avoided it of 
all modern free nations; and they have done so, because their lih- 



THE SOUTHERN EEBELLION. 327 

erty was organized in institutions approved by experience, im- 
proved by reason, and adhered to by inveterate habit and national 
pride. Those institutions exclude every element of arbitrary power, 
and define by law the rights and duties of every man ; and when 
those laws are abandoned, we become as France is. ISTecessity will 
be the supreme law — the President its supreme interpreter — its 
only rule his will — his only limit, what he thinks the people will 
bear, lie will still speak in their name — but he will not execute 
their written will, but what he divines to be theirs. 

This is democratic government, but it is not American republic- 
anism. It is the system now being inaugurated by the connivance 
or the blindness of the people. 

We are treading the path of the Roman Republic — the history of 
whose freedom is unconsciously summed up in a single paragraph 
of Justinian's Institutes, defining the sources of Roman law. Its 
whole history is there from the day of its vigor and vigilance, when 
the law was the only rule of action, down to its day of lassitude and 
corruption, when the wearied people had accepted the will of the 
prince as their only law. 

Lex est quod populus Rom anus senatorio magistratu interro- 
gante, veluti consule, constituebat. 

Plebiscitum est quod Plebs plebeio magistratu interrogante, ve- 
luti Tribuno, constituebat. 

Senatus consultum est quod senatus jubet atque constituit. ISTam- 
quura auctus est populus Romauus in enm modum ut difficile esset 
in unum eum convocari legis sanciendee causa, ajqum visum est 
Senatum vice populi consuli. 

Sed et quod Principi placuit legis habet vigorem, cum lege regia, 
qnsB de ejus imperio lata est, Populus Eomanus ei et in eum omne 
imperium suum et potestatem concessit ! ! 

AVe have taken our first steps in this downward road. The last 
six months have laid up a mass of dangerous precedents for future 
ambition. And after your and my day, when our children shall 
have inherited the soil without the institutions of their fathers — 
when it shall have become the settled conviction that the Consti- 
tution is made for times of peace, that necessity is paramount to its 
prohibitions, that the President's discretion is the judge of the neces- 
sity and of the measures required to meet it, the learned jurist of 
some American Justinian will enumerate as of the past the old 
sources of the law of the Republic — the Constitution and the laws 
passed in pursuance thereof by Congress — but will tell us that the 



323 THE SOUTHERN EEEELLION. 

frequent necessities of the case, the defects of the written law, the 
inconvenience of consulting Congress — the greater convenience of 
Presidential rescripts, epistles, edicts made for the emergency, in the 
confidence that the people will approve them — these have become 
the settled substitutes for constitutional legislation; and he will 
close his summary by those significant words. 

" Sed it quod PresldctiH placuit legis habet vigorem ! !" 

We are taking our first steps toward that dark cavern into which 
the steps of all free nations before us have strayed, and from which 
only a few have ever .returned, and they seared by the fires of revo- 
lution and scarred by the chains of their servitude. 

These dire calamities we may avoid, if we resolutely adhere to 
the limits of the Constitution. 

Let us appreciate the vast difiiculties Avith which the Administra- 
tion is called to struggle ; let us not judge harshly their errors ; let 
us accord them a generous confidence; but let us require them to 
grapple with the difiiculties according to law — forbid their recur- 
rence to discretionary devices — rigidly repel usurpation under any 
pretext, at any instigation, even that of the people themselves. 

Consistently with our Constitution there can be no such thing as 
martial law. 

Has the Constitution, then, omitted or excluded anything neces- 
sary to carry the Eepublio through this great crisis ? 

Let us turn to its arsenal, and survey its arms. 

We make the war in the name of the Constitution ; that Consti- 
tution provides that Congress shall guarantee to each State of the 
Union a republican form of government. Wicked men in all the 
seceded States have flown in the face of that great fundamental 
»a\v, and violated the fundamental principle of all republican gov- 
ernment, and inaugurated governments in defiance of the supreme 
law of the land. It is the case in which the Congress of the United 
States — not by the law of necessity, not by the law of self-preser- 
vation, not for the safety of the people, not because tlie President 
or the .people think it advisable, but according to the written law 
of the land — are bound to intervene with all their powers of every 
kind, and guarantee to the people of those States, loyal or rebel, a 
republican government, controlling the people under the forms of 
law ; and Chief Justice Taney and the Supreme Court have told 
us so. 

" Unquestionably," they say, " a military government established 
as the permanent government of a State icould not he a repuldlcaii 



THE SOUTIIEEN EEEELLION. 309 

government^ and it would Le tlie duty of Coxgress to oxer- 
throw it.'''' 

It is therefore the duty of Congress noio to ovERxnROW the 
usurping governments in ten rebellious States. And how should 
it be done ? Congress is vested with power to call forth the militia 
to execute the laws of the Union and to suppress insurrection, as 
well as to repel invasion. The critical gentlemen who impeach the 
authority of the Government to use force, acutely distinguish be- 
tween the rebellion in the Southern States and an insurrection. 
That is done under the authority of State sovereignty ; it is done 
at the bidding of sovereigns, and therefore it is not insurrection. 
The Constitution of the United States, and all laws made in pur- 
suance thereof, are the supreme law of the land, anything in 
the constitution or the laws of any State to the contrary notwith- 
standing. Let them be as sovereign as they please, Avhen they 
pass an ordinance of secession it falls before that sovereign clause 
of the Constitution, and is so much waste paper. [Applause.] 
Their laws are the acts of a mob, transcending the limits of their 
power, and flying in the face of the supreme government of the 
land. If that be supreme, they are subordinate. If Congress is to 
declare the supreme law, the ordinance of secession is an inferior 
law. If the judges are to be bound by tlie laws of Congress, any- 
thing in the constitution or laws of the States to the contrary not- 
withstanding, then the judges are bound to annul and disregard the 
ordinance of secession, and Congress is bound to interfere the 
moment a State attempts to override the supreme law of the 
Eepublic. And how? By authorizing the President to use the 
-military power of the Eepublic to compel the submission oi '\t°> ene- 
mies, and by such reasonable penalties and forfeitures as will not 
exasperate and indurate the hostile population. The President, of 
himself, has no power to do anything. lie is the executor of the 
laws. He has authority to command the army when the army 
exists, but it can only exist by the law of Congress. He is directed 
to see that the laws be faithfully executed ; but he can execute no 
law until it exists. Until the laws giv^e him authority to act, he 
has just as much power as you or I. He is not our master. lie 
has no discretion vested in him. He is bound by the limitations of 
the law. What that allows him to do, he can do ; what it does not 
allow him to do, he can not do. That is the principle of our repub- 
lican government. That is the example set by Washington, He 
was compelled to suppress the AVhisky Insurrection, and he did it 



330 THE SOUTIIEEN EEBELLIOX. 

in spite of tlie imperfection of the law, but according to law ; yet 
there are some people who think that George Washington did not 
make a government that would conduct ns through an insurrection. 
The law of 1795 was passed in his adniinistration and at his instance, 
he having found in theAVhisky Rebellion in Pennsylvania, that the 
preceding laws upon the statute-book were inadequate for the pur- 
pose. Has any historical gentleman here present ever heard that 
Washington thought the inadequacy of the law a sufficient reason 
for usurping a power which the Constitution did not grant ? No ; 
he did the best he could. He bewailed the inefficiency of the ex- 
isting law, but he did not venture to supply it by the law of the 
public safety, by his own ideas of the public necessity, by usurpation. 
There would have been no difficulty then, if usurpation could 
always supply a deficiency. But he, the great Father and founder 
of the Constitution, went to the Senate and House of Represent- 
atives, and laid before them, in his formal message, the deficiency 
of the law under which he had been obliged to struggle with the 
rebellion which then threatened the existence of the national repub- 
lic as much as this threatens its existence, and beg them to relieve 
his successors from the embarrassment to which he had been sub- 
jected. And they did it. They who impeach Mr. Lincoln for 
usurpation shut their eyes to that law. They who say that the 
Government has no legal authority to use military power to sup- 
press the rebellion, overlook that law. I read to-day the message 
of the self-styled President of the Confederate States, in which lie 
audaciously says that the President has made war upon them with- 
out the authority of Congress. And that very man, when he was 
Secretary of War, under that very law of 1795, organized those 
infernal proceedings in Kansas. 

What has Congress done? If it has not done enough, it will 
meet in the course of a few days, and may do more. If it has 
omitted important measures, it can supply deficiencies. But what 
it has authorized up to this time is the limit of what it is allow- 
able for the Executive power to do. It has passed a law confiscat- 
ing part of the property of rebels, and therefore nobody has the 
right to confiscate all their property. Be it right or wrong, wise 
or unwise, it is not in the law, and therefore it is forbidden. It has 
authorized, and in my judgment wisely, the confiscation of prop- 
erty used to promote rebellion, and there it stops — there the Presi- 
dent is bound to stop — there the military commanders are bound 
to stop, whether on a foraging party or otherwise. ^ That is tlie im- 



THE SOUTHERN EEBELLIOX. 33I 

passable limit of tlielr power. It has enacted that there shall be a 
blockade of the Southern coast, a cessation of commercial inter- 
course. That is the greatest stretch of power tlnat Congress has 
undertaken to exercise touching this subject. In my judgment, it is 
within its full competency. In my judgment, it was necessary to 
the accomplishment of the great purpose of preventing military and 
other supplies from reaching men in arms. It, doubtless, bears 
hardly on the loyal men of the South who swarm there, as I am 
proud to know, by thousands, but disarmed, and therefore power- 
less. [Applause.] And I know that, while they feel the privations, 
they submit cheerfully to the restriction, for over the glare of the 
conflagration they still see the dawn of the coming day of liberty. 
[Applause.] These are two things that Congress has done. What 
else has it done ? Placed a magnificent army at the disposal of 
the President of the United States, charged to guarantee a repub- 
lican government to those who now no longer know its blessings, 
and to extinguish the last spark of rebellion. 

Is that army an idle pageant — a holyday parade ? Or may it 
smite with the sword it bears ? 

The law is the only criterion ; the law assembles it — the law 
defines its rights and duties. 

Ohedience to the Constitution and laws is all the Government has 
a right to demand. 

If individuals refuse obedience, the courts and juries and mar- 
shals will compel it. 

If numbers combine to resist, the law vests the marshal with the 
right to summon the power of the county to dispel the array. 

But when the unlawful combination swells into insurrection, and 
overmatches and defies the marshal and his powers, is the Govern- 
ment to submit? When the ordinary civil, judicial, and legal 
modes of proceeding have failed, the enemies of the Government 
say that it must stand with its hands by its side and see itself torn 
limbless. But does the law say that because the courts can render no 
assistance they can not be opened ? On the contrary, when they have 
been closed, then the law lifts the banner of the Republic, draws 
the sword, and, still w\aiting and giving its erring children time for 
repentance, forbids the use of the drawn sword till the President 
shall have issued his proclamation, directing the unlawful combi- 
nations — not seceded States, but unlawful combinations of men 
too strong to be dispersed by the marshal — to go to their respective 
homes. And that Abraham Lincoln did. [Applause.] And when 



S32 TIII^ SOUTHERN r.EEELLION. 

they ditl not go to their respective homes, when all the stages of 
republican forbearance had been passed, when all the forms of law 
had been duly invoked, and the last remedy was all that remained, 
he solemnly put forth his proclamation, and by the written law of 
the land called the children of the Republic to its defense — and 
they answered by the million. [Applause.] ISTow, what are they 
charged to do ? What is the reason that military force is allowed 
at all ? Because the civil process has been overborne. What is 
the purpose of the military force ? To disperse armed opposition, 
that arrests the progress of the marshal, that closes the court of 
justice, silences the judge on the bench, and renders impossible tho 
ordinary and peaceful enforcement of the law. And what do you 
want the army to do? To hunt peaceful people, quietly residing 
at home, whom a marshal with a writ can arrest? Are six hun- 
dred thousand men, your sons and brothers, in arms for that? 
How wretchedly inadequate is the ca"use ! For what, then ? It 
is to scatter the array of armed men ; it is to break down a combi- 
nation of armed force — to break the military power arrayed against 
the Republic. When that is broken, what stands between the 
marshal and the person that the law would .punish? The right to 
draw the sword comes from the fact that tlie law is arrested. The 
sword must go into its scabbard when the law no longer meets with 
opposition beyond the power of the marshal to disperse it. This 
is not martial law ; it is the solemn written law of the Republic 
that armed men shall meet armed men — that they who lift the ban- 
ner of rebellion shall be met by the banner of the Republic — that 
they who appeal to arms shall be met in arms. And then when thejf 
quote to 3"ou, as they do, the language of the Constitution, that no 
person shall be deprived of life, liberty, or property, without due 
process of law, I reply that against those in arms against the Gov- 
ernment the bayonet is the process of law. [Applause.] A bullet 
speeds on its mission just as legally as the marshal with his writ. 
[Applause.] The order to fire on men arrayed against the Govern- 
ment is as much the language of the Constitution of the United 
States as the order of the marshal to arrest the man named in his 
process. [Applause.] Let them disperse if they do not wish to be 
dispersed, and if they will not disperse when commanded,. then they 
draw the fire of the Government — they call down its thunder upon 
their heads — they necessitate an appeal to tlie sword. Let them 
who draw it perish by it. [Applause.] Why talk about that word 
which is unheard of in re[)ublican lands, but is tlio home-compan- 



THE SOUTnEFwN KEBELLION-. 333 

ion of tlie despots of Europe— martial law; a state of siege— the 
will of the commander— the necessity of dooming people to death 
after they have been arrested by the military authority, because 
vengeance can not v.-ait the lagging process of trial ? When the 
military array is dispersed, they no longer present opposition to the 
enforcement of the laws ; the necessity of the military force ceases 
with the dispersion ; the right to nse it ceases with the necessity ; 
the necessity is limited by the language of the law to combinations 
too powerful to be suppressed by the ordinary processes of law. 
That is the true, legal, and constitutional position. Is it not better 
to keep to the statute-book and the Constitution, than to insult the 
memory of Washington by supposing that the machinery of his 
government has failed on its first trial ? 

And when the army is assembled, what may it rightfully do ? Is 
it subject to the caprice of private owners for ground to encamp 
on, for positions to fortify, for fields to fight on ? Must it confine 
its' march to the public highways? stop to pay toll ? [Laughter.] 
Ask leave to trespass on a gentleman's ground, before it ventures 
to deploy against an advancing foe? Is it to assess damages for 
treading down grass before it can throw up a breastwork to protect 
it from an advancing foe ? If the legislature repeal, or the com- 
pany surrender the charter for the road, is the force stationary, or 
driven to violate the right of property which the Constitution so 
formally guarantees? So argue the enemies of the Republic who 
profess to be the friends of the Constitution ; but their argument 
displays their ignorance only. 

The same right which takes land for a railway track against the 
owner's will, subjects the whole territory to the burden of war at 
the will of the military authority. It is not a violation of a private 
right— it is the assertion of the right of eminent domain over the 
national territory. Is the authority to take a man's property for a 
railway more imperative than that which allows the Government 
to defend itself against military power ? Before the supreme right 
of the Government to wage war— foreign or domestic— State lines 
are obliterated [applause], every division of private property is 
obliterated, every individual right is subordinated. It is the right 
of eminent domain of the Republic, asserted in time of war by the 
highest political authority, the Constitution of the United States. 
The right to use military force granted in the Constitution must 
find its interpretation in the laws of tactics and strategy, of projec- 
tiles and defenses aga'nst them, the formal evolutions of troops on 



334 ^'^^ SOUTHERN REBELLION. 

the maroli and on the Lattle-field, for these thhigs are icar ; these 
things are the employment of military force ; these things are what 
they meant who framed the Constitution. Every pohtical authority 
so construes the Constitution; and the judicial agrees with the politi- 
cal department of the Government. The Supreme Court, in sustain- 
ing the appeal to arms by Rhode Island, said : " It was a state of war, 
and the established government resorted to the rights and usages of 
war to maintain itself, and to overcome the unlawful opposition." 

The same principle vests a military commander with the right 
to seize personal property for the use of the Government on sudden 
and pressing emergencies, w^hen recourse can not be had to public 
supplies — a right which Butler exercised when he seized the 
Annapolis railway. 

He may destroy property to prevent it falling into the enemy's 
hands, even when he could not take it for his own use. 

But beyond these and the like cases, private property of the citi- 
zen, loyal or disloyal, is as sacred in civil war as in foreign war or 
in peace. Eebellion gives no rights of robbery ; but Congress may 
legalize confiscation — it is not a right of war, it is a penalty attached 
to crime. 

But the right to seize and hold persons in arms, or aiding and 
abetting them, is a right involved in the right to use military force. 
On that the political authority and the judicial authority agree. 

"In that state of things," say the Supreme Court (in a state of 
civil war), "the officers engaged in its military service might law- 
fully arrest any one who, from the information before them, they 
had reasonable grounds to believe ims engaged in the insurrection.''^ 

But when arrested, is he to be discharged at the bidding of any 
judge on a habeas corjms f and can that be prevented only by 
admitting the President's right to suspend it? On whom does the 
Constitution confer the right to suspend it ? "War does not suspend 
it. Can the President ? Blackstone says that in England it is sus- 
pended only by act of Parliament. The writ of habeas corpus 
so far as it is applicable, is issued under the language of the statute, 
and as long as the act is on the statute-book, there is no power in 
the United States that can arrest the progress of the writ, except 
in Congress, which may repeal or suspend the privilege for the 
time being. Where do they get the authority? If it w^ere not 
prohibited therein specifically, it would result from their right to 
repeal a statute which they had enacted. You need go no further 
than that. But the Constitution was careful to secure to us the 



TUE SOUTHERN REBELLION. 335 

right to tlie writ paramount to the will of Congress, except in cases 
of invasion and rebellion, where the public safety miglit require its 
suspension. AVhen, therefore, those circumstances occur, that writ 
ought to be suspended. In my judgment, it was a serious oversight 
or neglect in Congress at the last session not to have suspended it 
in some parts of the United States, and in respect of some classes of 
persons. They did not do it; that is their fault. But that does 
not vest any right to supply their omission in the head of the Exec- 
utive department of the Government. On this great topic the bar 
of the United States has been smitten with barrenness or vertigo. 
Only one discussion of it worthy of the subject and the bar has met 
my eye, and that was from the justly distinguished Professor 
Parker, of Harvard University. It is greatly to be regretted that 
so distinguished a jurist should have dropped an ambiguous doubt 
of the President's right to suspend the writ — that is, to repeal an 
act of Congress I Blackstone denies the right to the Crown ; Story 
confines the right to Congress. But no one has quoted the solemn 
judgment of John Marshall — a man of some repute in his day, and 
not entirely without weight among men in our times — respecting 
the Constitution, which he consolidated on the foundations of 
AVashington. The writ was moved for in behalf of Bolman and 
Swartwont — arrested by a military officer at New Orleans, brought 
to the District of Columbia, and there, by President Jefferson, 
delivered to the Court, and committed for trial for treason. The 
right of the Court to award the v^'rit was denied, and after argu- 
ment, the Court, by John Marshall, thus delivered the judgment 
on the authority to suspe-nd the writ : 

"If at any time the |y2<6ZiC safety should require the suspension 
of the powers vested by this act in the courts of the United States, 
it is for the Legislature to say so. 

" That question depends on political considerations, on which 
the Legislature is to decide. Until the legislative will be expressed, 
this Court can only see its duty, and must obey the laws. 
" The motion, therefore, must be granted." 
I think hereafter it will be a stain on any lawyer's reputation to 
have ascribed to the President that dangerous and unconstitutional 
discretion. 

I presume that argument may be dispensed with after that great 
authority, but what then ? The enemies of the Government draw 
from that an argument to paralyze the military force of the Govern- 
ment. The President can not suspend the writ of haleas corpus ; 



33G THE SOUTHEEN EEBELLION. 

tlicrefore it can be used to discharge everybody ! Bat is there no 
Congress ? Or, is it less trustworthy than the President ? The bus- 
iness — according to those who wish to destroy the Government — of 
the writ of hcibeas coiyus^ is to let traitors out ; its great merit is, 
to tarn out those who ought not to be free. I respectfully submit 
that they have overlooked some very material distinctions. AVho 
is discharged by the writ of habeas coijms? The person who is 
not confined by law. If, therefore, he ought to have been confined, 
although he come up under the call of the writ, he will be sent 
back by the judge. An apprentice, a sailor, a soldier can not be 
discharged by a writ of habeas corpus. Their error is, the assum- 
ing that there can be no legal confinement except that which re- 
sults from legal process. I say that there can be legal confinement 
which is not the subject of judicial examination and which is not 
by process of law ; and yet unlimited discretion does not exist in 
the President to arrest any person of whom he may have suspicion ; 
but there are rules prescribing the limits of that power of arrest 
without judicial process, addressed to the President and not to 
the courts. That gentlemen who profess to be of the straightest 
sect of the Eepublicans should prefer to rush to the dangerous dis- 
cretion of the martial law and indiscriminate authority in the Pres- 
ident without limitation, rather than take the trouble to scan 
the settled law of the Pwepublic as it has been declared by its 
greatest lights — is one of the dangerous symptoms of the times. 
The President is authorized by the act of Congress to exercise mil- 
itary power, not against quiet people at home, nor against people 
who entertain treasonable sentiments, but against men in arms., 
against men aiding and abetting them ; that is, against men engaged 
actually in the insurrection, men conveying military information 
or military stores, men sending them provisions — against men doing 
any act of any kind to aid the actual accomplishment of armed re- 
bellion. The military force is directed against them. Chief Justice 
Taney, in a case which has become celebrated, and always unfor- 
tunate for the doubt which in some minds it has thrown over the 
law, previously well settled by both political and judicial authority, 
by his judgment in the case of Merriman, alarmed and astonished 
the country, by declaring that there is no authority to hold a pris- 
oner otherwise than by the leave of the courts under judicial pro- 
cess on judicial evidence. Jefferson Davis is now at Bull Run or 
Manassas Crap. In the course of a few weeks, we trust the bayo- 
nets of the Republic will point iu that direction. [Applause.] We 



THE SOUTHERN EEBELLIOK 337 

hope that superior numbers, great military organization, abun- 
dant military materiel, directed by superior military skill and in- 
spired by the love of the Constitution as well as the Union, will 
soon unite and destroy the Confederate army ; and when it is de- 
stroyed, if Mr. Jefferson Davis shall happen to be taken prisoner, 
together with 50,000 of his soldiers, we may expect a writ of lia- 
leas corpus issued from the Circuit Court of the United States at 
Richmond, under the protection of United States bayonets, to call 
all the 50,000 before that court and discharge them, because there 
is not a magistrate's warrant to hold them. [Laughter.] You may 
shoot a soldier, but if you do not shoot him, you can not hold 
him ! Why, has everybody forgotten the Dorr rebellion ! ! On a 
small scale, in a small but very patriotic State, men raised the arm 
of rebellion, and the Legislature declared " martial law." That is 
the first time those ill-omened words — ^'•martial laio^'' — can be 
found in an American statute ; the weed has since spread and is eat- 
ing out better grass. The governor understood it to mean — not 
discretionary despotic power above law, but the right to use mil- 
itary power to suppress that insurrection, and he did so ; and in the 
course of his efforts, he forced open a house without a warrant of 
search and arrested a man Avho was aiding in the insurrection with- 
out a warrant. 

The question of the right to do so in this case was taken to tlio 
Supreme Court of the United States, and there a judgment was 
rendered which has acquired more significance by subsequent 
events than by those which brought it forth. He was arrested by 
military authority ; he was held without process; he was held by 
a military ofiicer. Was that a violation of the law of the land ? 
What does Chief Justice Taney say in that case^^for it was his for- 
tune to pronounce the judgment of the Supreme Court in that case 
— a judgment which has acquired more significance by recent 
events than by those which brought it forth. 

" It was a state of war, and the established government resorted 
to the rights and usages of war to maintain itself and to overcome 
the unlawful opposition. And in that state of things, the ofilcers 
engaged in its military service might lawfully arrest any one who, 
from the information hefore them^ they had reasonable grounds to 
believe was engaged in the insurrection, and might order a house 
to be forcibly entered and searched, when there were reasonable 
grounds for supposing he might be there concealed. Without the 
power to do this^ martial law and the military array of the Gov- 



338 THE SOUTHERN EEBELLION. 

ernment would be mere parade and rather encourage attack than 
repel it." 

No Aviscr words than those have been said on this delicate sub- 
ject. First, we learn that when military power has been author- 
ized by law — as Congress has authorized it now — the " militaiy 
officers" might lawfully arrest — the lawful right is therefore not 
confined to a civil magistrate — " any one who upon information be- 
fore them" — that is, without siDorn statements of any kind — without 
legal or sworn testimony — any one " whom they had reasonable 
grounds to believe" — not any one proved legally before a magistrate 
— " Avas engaged in the insurrection" — not any one of suspicious 
opinion.% or dangerous influence, or uttering treasonable sentiments 
— but any one engaged in the insurrection — that is, when hostility 
had passed from a mental disposition into the external act of hos- 
tility ; and such persons may be arrested, not merely when openly 
on the field in arms, but a house may without warrant be forcibly 
broken open and searched, where there were not sworn but reason- 
al)le grounds to believe him concealed. 

The rights of the people and of the individual are all defined and 
guarded in this remarkable judgment ; the military power is eman- 
cipated from judicial shackles and judicial blindness ; and in an- 
other passage it is freed from judicial revision. 

Now, one step farther. The court is speaking of the precise case 
that we have before us — of a declaration on the part of the President 
of the existence of circumstances requiring the use of military force 
— and the question is, whether they are cognizable by the courts at 
all. The courts proceed according to judicial forms ; the political 
power does not proceed according co judicial forms ; it proceeds in 
an administrative manner, which is equally legal and constitution- 
al, for the Constitution authorizes both. What was Merriman's 
case ? He had aided to burn bridges and prevent the advance of 
the national troops to Washington, and was actively engaged in 
that most efficient ihethod of arresting their progress. That case, 
then, comes within the military right of the President to make a 
niiilitary arrest. What does the Chief Justice of the United States 
say, touching the right of the court ? What was the case of the 
Baltimore mayor and police commissioners and their marshal of 
police ? They were at the h»ad of an armed force hostile to the 
United States, which they had actually used for hostile purposes 
in aid of the insurrection. They were subject to military arrest ; 
but after arrest, were they subject to the results of a judicial pro- 



THE SOUTIIEEN EEEELLION. 



839 



cess for their deliveiy ; or were they liable by law of equal dignity 
to be held in spite of the courts and beyond their jurisdiction, and 
by a right of which theij were not entitled even to judge? Read 
the judgment of the court limiting its own powers. 

" After the President has acted and called out the militia, is a 
circuit court of the United States authorized to inquire whether 
his decision was right ?" 

" If it could, then it would become the duty of the court, provid- 
ed it come to the conclusion that the President had decided incor- 
rectly, to discharge those who were arrested or detained by the 
troops in the service of the United States. If the judicial poioer 
EXTEXDS so FAR, the guarantee contained in the Constitution of the 
United States is a guarantee of anarcTiy^ and not of order. Yet if 
this right does not reside in the courts when the conflict is raging, 
if the judicial power is at that time bound to follow the decision of 
the political, it must be equally bound when the contest is over." 

It can not, when peace is restored, punish as offenses and crimes 
the act which it before recognized^ and was bound to recognize, 

AS LAWFUL. 

A military arrest, therefore, of a person engaged in the insurrec- 
tion is not only legal., but is beyond the cognizance of the courts. 

It is true this judgment was rendered when President Tyler was 
suppressing an insurrection in a free State ; and it may be thought 
doubtful if tlie same law apply to President Lincoln suppressing an 
insurrection in a slave State. The learned reader will, under Lord 
Coke's advice, note the diversity. 

There are those who think against a Southern State the Govei-n- 
ment has no rights ; there are those who think against a Southern 
State there are no limits to the authority of the Government. But 
these sentences cover the whole case ; not by reasoning on my part 
from the language of the Constitution, not from judges supposed to 
be favorable to our side of the case, not in a case made in tlie heat 
of the time and in the midst of this controversy; but in a case de- 
cided under the presidency of Jolm Tyler — decided when South- 
erners had tlie possession of every department of the Government ; 
when they had the balance of the power in the Supreme Court it- 
self; when it was their power that was arrested and defied, and 
when they were charged to execute the law and use the military 
power of the United States to enforce the laws of the United 
States. This judgment, rendered by one, perhaps, not too friendly 
to the United States in this hour of peril, is now the very founda- 



340 THE SOUTHERN IIEBELLIOX. 

tioii of the law of the Republic; put there in the administration of 
John Tyler, as if to provide for the very case — to exclude con- 
troversy under clianged circumstances. It does not say, that if a 
man is arrested by the military authority and brought before the 
court, that the court after inquiry into the justification of the ar- 
rest would remand him ; but that the court has a right to inquire 
into the legality of his arrest. It does not say that the court is en- 
titled to inquire by the oath of Avitnesses, by the process of a mag- 
istrate. It says, when the President has acted and men are 
arrested, that the courts have no right to inquire into the subject 
at all. 

The order of the President is conclusive on the courts ; lie is ex- 
ercising a political discretion vested constitutionally by law in him ; 
and for that he is responsible by impeachment in Congress. N"ow, 
Ave begin to understand the power which resides within the Con- 
stitution of Geoi'ge Washington, as well as the limitations which, as 
with bands of iron, bind it down to the necessities of the public 
service, limiting and excluding everything like mere discretion, 
everything like mere arbitrary power, and subjecting the liberty 
of the citizen only to the icritten laic of the land. 

If, then, after the President's proclamation commanding rebels 
to disperse and ordering out the militia, a man arrested by the 
President's order, because engaged in the insurrection, apply for a 
]ial)cas coiyus^ how shall the law be administered? 

By the settled course of the courts, if he show the facts on the 
petition, the court will refuse the writ. 

But if he state a case of illegal arrest, and the court award the 
writ on the false suggestion, is the military officer to produce the 
prisoner? 

Assuredly not; his duty is to return to the court the simple fact 
that the person is held by the order of the President for being en- 
gaged in the insurrection. That is a legal and technical answer to 
the writ ; and the court is bound to take official notice of the proc- 
lamation declaring the existence of the insurrection — which carries 
with it by law the right to use military power. 

What if the courts attempt to enforce the production of the pris- 
oner? It is the legal duty of the officer to resist force by force. 
Where one is held by authority paramount to the courts, that fact 
is the legal return. It has been so declared by Judge McLean — 
whose loss the jurisprudence of the country will long feel and de- 
plore; and the eminent tribunal of which he was at once the orna- 



THE SOUTIIEEX EEBELLION 341 

ment and pillar, by the mouth of the Chief Justice, has only four 
years ago instructed us on this momentous question. 

A court of Wisconsin, infected by the theories of South Carolina, 
undertook to compel by habeas corpus the discharge of a person 
held by the United States marshal. The Supreme Court unani- 
mously declared it " the duty of the marshal to make known to the 
judge or court, by a proper return, the authority Ijy ichich he holds 
him in custody." 

" After the return is made, and the State judge or court judicial- 
ly apprised that the party is in custody under the authority of the 
United States, they can xjroceed no farther. And consequently it 
is his duty not to take the prisoner, nor suffer him to be taken be- 
fore a State court or judge upon a hahcas corpus, issued under 
State authority." 

But what if the State court appeal to force ? 

" It -would be his duty to resist it, and to call to his aid any force 
that might be necessary to maintain the authority of law against 
illicit interference." 

" No judicial process, iDhatever form it may assume, can have 
any lawful authority outside of the limits of the jurisdiction of the 
court or judge by whom it is issued; and an attempt to enforce it 
beyond their boundaries is nothing less than lawless violence." 

That is the condemnation of the proceedings in the Merriman 
case ; the asserted right to suspend the writ by the President was 
justly disregarded by the court ; but the return showed a military 
arrest in time of insurrection, of a person engaged in it, by order 
of the President ; and such an arrest was by law beyond the juris- 
diction of tbe court ; and the officer was not bound to obey the writ 
to bring up and hold him for the judgment of the court and take 
the chances of adjudication for want of legal evidence, althougli the 
man might have been arrested upon secret information which would 
be sufficient to move an army or fight a battle upon, yet not recog- 
nized by a court of justice — it was his duty to give the court infor- 
mation of the authority und'er wliicli he was held, and that excluded 
the right to inquire whether he was held rightfully or wrongfully. 

ISTow, that is the precise condition, in every particular, of the 
President of the United States, who has seized men in arms against 
the Government, or men who have been aiding those in arms, and 
is holding them pending the w^ar. There is no hardship in holding 
a man who is engaged in arms against the Government; and tha 
right to determine who is in arms against the Government is neces- 



342 '^^^^ SOUTIIEEN REBELLION. 

sarily exclusively vested in the President when he is directed by 
law to suppress the insurrection ; for before that can be done, he 
must ascertain who is making it. He can punish no man for 
treason^ but he can slay thousands on the field of battle ; he can 
arrest no man because he has committed treason; but he may seize 
and hold thousands engag-ed in the insurrection till it is extin- 
guislied ! 

It is the difference between suppression of rebellion and punish- 
ment for treason ; the power over persons and property incident 
to military operations allowed by law, and usurpations of power 
not granted or forbidden. 

The President may occupy my house with armed men for 
defense, he may pull it down to prevent its sheltering the enemy, 
but he dare not quarter a single soldier in it without my consent ; 
for the Constitution forbids it. He may pull down a printing-office, 
if required by military operations ; he may, if Congress make sedi- 
tious articles a crime, prosecute an editor ; but there is no power in 
the Government to prevent him, or others for him, continuing to 
publish his paper, or controlling its contents by censorship, for the 
Constitution forbids it. 

The property of rebel and loyal are alike subject to the sudden 
necessities of war; but the President, in conducting the war, has 
no right over property because it belongs to a rebel, more tlian he 
would have if it belonged to a loyal citizen. He is to make war 
for suppression, not for punishment; that belongs to the courts. 

But within the scope of warlike operations, the President, by 
the law of Congress, is paramount to the courts. He is charged 
with a high discretionary political power, of the propriety of whose 
exercise the courts are incompetent to judge, as they have repeat- 
edly declared ; the courts take the law from the political depart- 
ments in all such cases. They can recognize no government unless 
the President has recognized it. They can entertain no question 
of boundary of the United States other than that recognized by 
the political departments. They can not question the conduct of 
the President in declaring a state of insurrection, or in ordering 
the militia to suppress it ; and it is merely another application of 
the same principle which forbids them to control, arrest, or judge 
of the justification of any military acts done within the scope of 
the military authority confided to the President by Congress. The 
same law which gives the courts their jurisdiction, exempts such 
acts of the President from their cognizance. 



THE SOUTHERN EEBELLION. 343 

• 

I piTij your indulgence for these dry details ; but tlie founda- 
tion-stones of the Republic are not polished as the columns and 
cornices which glitter in the sun ; and it is those deep foundations 
T am exploring. 

Gentlemen of the Association, I trust that I have made myself 
intelligible, but I fear I have wearied you by the dryness of a mere 
legal discussion, before a mixed and popular audience; but we all 
profess to be citizens of a great and free government, now engaged 
in one of those rare crises that every nation has to pass through 
at some period of its career ; and it is well that we should look to 
the great charter of our liberties, and elevate it, if necessary, in 
our own estimation, by contemplating the wisdom with which it 
lias foreseen every danger, the amplitude of the powers which it 
has provided to deal with every contingency, and the discretion 
it has exhibited in confiding powers to Congress, some with limit- 
ations and some without, providing in that way for every contin- 
gency that can arise. We may very well spend an hour or two, 
even if it be in the laborious pursuit of a dry argument, to rid our 
minds of an impression which has so settled into public conviction 
among great masses of our countrymen, that the legal authority is 
not sufficient to deal with the existing danger. It takes away half 
our republicanism to feel that we put down rebels by a violation of 
the law. It takes away from the elevation, the dignity, and the 
superiority of the Government in dealing with them. It is impu- 
dently flung into our faces by the message of Jeiferson Davis, who 
speaks about the tyranny of men who are assailing him. I wish 
the war to be conducted as a war ought to be conducted, which is 
to determine the life, and not only the life, but that which is more, 
the freedom of the American people, the reputation of republican 
government, its respect, its enduring power, and its influence over 
the nations of the world. There are those abroad who would 
rejoice at our fall — there are few who would not, except the 
oppressed of the Old World. In their name I appeal to you — let 
not the name of the Eepublic go to Europe humbled by the con- 
fession of its own failure. Let it not go shorn of the glory which 
has made it an ever-present terror to the enemies of liberty abroad. 
Let it stand glittering in armor, but the armor of the law. Let it 
stand the emblem of the power of the people to govern themselves, 
according to laws wisely foreseeing danger, without putting their 
liberties, their fives, and their honor at the discretion of men no 
wiser or better than themselves— dictators to supply the want of 



344 THE SOUTIIEEN REBELLTOX. 

• 

foresight in tlie people. [Applause.] I am as humble as any inau 
in this assembly, but there is no man here good enough to be my 
master. I respect and confide in the wisdom, resolution, and 
uprightness of President Lincohi; but President Lincoln is not 
good enough for my master. [Applause.] I will trust him with 
the administration of the Laws, but I will not trust him to make 
them, nor beyond them. I will trust him with all the great 
deposit of power that the Constitution has placed in his hands — 
that vast power which, when it is called forth in the magnificence 
of its military array, blinds the eye accustomed only to the habili- 
ments of peace; but I will not add to it a dictatorship — arbitrary 
and discretionary powers without the guidance and above the 
control of written laio. I protest against it in the name of repub- 
lican liberty. I protest against it in the name of every limitation 
in the Constitution under which we live. I protest against it in 
the name of those Englishmen who defied in arms their king, be- 
cause he claimed over them discretionary, unlimited power; and 
of those fathers of the Constitution who in this country followed 
in tlieir footsteps, were lighted by their wisdom, were guided by 
their example, and embodied in a law paramount to the varying 
will of the people the necessary restrictions upon the frailties of 
human nature. I turn with reverence to the great Northern light 
of the Constitution, the Newton of this great system — which is 
heaven while it is order, but will be chaos if discretion rule it — to 
guide my footsteps in this hour of darkness; and with him I read, 
inscribed on the foundations of the Government, these cardinal 
principles : first, government by representation ; next, that solemn 
declaration that the will of the majority — not of newspapers nor 
of public meetings — the will of the majority — not in a fright, not 
ip a panic, not divined from apparent necessity, but solemnly de- 
clared according to the forms of law — shall have the force of law ; 
then that there shall be a written constitution, defining and care- 
fully limiting the powers conferred upon the men charged to rep- 
resent the people, and restricting their discretion. Li that great, 
last legacy of the great iy"orthern statesman, when he was speak- 
ing, as it were, to future ages, and telling them, by the grandest 
enumeration that ever summed up a nation's progress, of the ele- 
ments of our prosperity, our power, our advancement, and the 
glories of our achievements — in that great oration he thought it 
important to call to the minds of his fellow-citizens that these 
glorious results were not the offspring of mob law, or of arbitrary 



THE SOUTIIEEN REBELLION. 345 

discretiou, of despotism disguised as democracy, wliich rules across 
the water, or of military law, or of law made for the exigency by- 
executive usurpation, or of the law of necessity, or of the law of 
the safety of the people, but that the fountain from which all 
Howed was the rigid adherence to written law^ to the will of tfie 
X>co'ple 'proclaimed in constitutional forms. It was law so enacted 
that he proclaimed to be supreme. It was the result of a govern- 
ment so contrived and so administered, one that had attracted the 
admiration and the envy of the Old World, and was the founda- 
tion and prosperity of the ISTew, which he celebrated : and in this 
his great parting legacy to his countrymen, when he prophesied 
the endurance of the Republic, it w^as because these principles were 
its foundation, and he thought they would not be shaken. It is 
because these principles have been departed from that the edifice 
of the Constitution now reels around us. We must recur to them, 
cling to them, act upon them, if we would maintain the government 
that we have received from our fathers. It is our liberty that makes 
us respected and envied, powerful and glorious — our liberty of law 
in contrast with tliat which is democratic license, that mere un- 
checked, uncontrolled, absolute w^ll of a floating majority, rolling 
over every barrier, where demagogues lash the people into fury in 
order to accomplish their ambitious purposes. The peculiarity of 
the American people has always been its adherence and obedience 
to law, its hesitation, even under the greatest emergencies, to step 
across the lines of the law. It is only the revolutionary fever of 
this latter time that has driven for a moment these American ideas 
and these American feelings from the American heart. It is now 
time that we should be enabled to show that we not only have the 
military power to suppress insurrection, but that we can do it clad 
in the panoply of law. It is only weighty to those who are not 
yet habituated to wear it; we have proved it on many a field. 
Let us not throw it ofif in the day of battle. 

The nations of Europe fail in their efi:brts for republican govern- 
ment, because they are not habituated to the restraints of law 
self-imposed ; they are not habituated to subordinating their will 
of the moment to the calm judgment which has foreseen and pro- 
vided for the exigencies of the case. They fail because they admit 
the laAv of necessitj- to control the law of the land, and leave a 
discretion which is despotism to provide for the emergencies of the 
moment. It is self-control that is the greatness of the American 
people. [Applause.] It is obedience to their own lav,' that is 



340 THE SOUTHERN REBELLION. 

their po^ver. It is because they have declared that their Constitu- 
tion is the sahis 2)opiiU ; it is because they adhere to the rule that 
the tcritten Jcno is the voice of the people, it is because they 
appeal from the hour of passion to the day of calm reflection, that 
they have proved themselves worthy of the liberty that their 
fathers conquered for them. Wlien they shall neglect to adhere to 
that great rule, when they shall no longer be masters over them- 
selves, when they can not stop in a moment of passion, to reflect 
upon the limits they themselves have placed around their passions 
for their own good, and reverently bow before the holy laws, they 
can no longer be the peaceful, orderly, progressive, and powerful 
Republic of Washington. Till now the current of our life has 
rolled on, quiet and powerful as the Gulf Stream. The storm of 
party strife has rippled on its surface ; the foam of passion has 
vanished with the storm that caused it; and the great deep, undis- 
turbed, has rolled still, quietly, majestically, and reflecting from 
its surface the image of liberty robed in law. When you shall 
upheave its lower depths by the earthquake of revolution, you 
will have changed its majestic course ; you will have dried up the 
current of your prosperity ; you will have closed the sources of 
your power ; and in the place of the vanished waters will appear 
the lava and scorioD which strew the soil of revolutionary Europe. 
[Applause.]- 



CONTENTS OF VOL. IL 



Pa^e 
ITALIAN INDEPENDENCE. Addresses delivered in New York, Febru- 
ary 16, 1860: 

By Eev. Jos. P. Thompson, D.D 9 

By Eev. Henry "Ward Beecher 21 

By Eev. Henry W. Bellows, D.D IG 

By Prof. 0. M. Mitchel 26 

And Letters by Prof. Benj. Silliman 14 

By Hon. Geo. S. Hillard 15 

By Hon. Charles Sumner 14 

SUCCESS OF OUE EEPUBLIC. An Oration delivered in Boston, July 4, 

1860, by lion. Edward Everett 29 

THE UNION NOT A COMPACT. A Speech by Daniel Webster on the 
Fovce Bill, in the United States Senate, February 16, 1833, in reply to 

John C. Calhoun r>3 

JACKSON'S PEOCLAMATION TO SOUTH CAEOLINA IN 1SS3 97 

EEPLY TO HAYNE. A Speech in the United States Senate, January 26, 

1830. By Daniel Webster 117 

LA FAYETTE, An Oration delivered in New York and Philadelphia, De- 
cember, 1S60. By Charles Suhner 185 

THE CAUSES OF THE AMEEICAN CIVIL WAE. A Paper contributed 

to the London Times by J. Lothrop Motley, LL.D., D.C.L 207 

THE QUESTIONS OF THE DAY. An Address delivered in the Academy 
of Music, New York, July 4, 1861 (with Appendix). By Hon. Edward 

Everett 233 

PEOVIDENCE IN THE WAE. A Thanksgiving Discourse delivered in 

New York, November 23, 1881. By Eev. S. D. Burchard, D.D 291 

THE SOUTHEEN EEBELLION, AND THE CONSTITUTIONAL POWEES 
OF THE EEPUBLIC FOE ITS SUPPEESSION. An Address before 
the Mercantile Library Association of Brooklyn, November 26, 1861. By 
Hon. Henry Winter Davis 315-340 



PUBLISHER'S NOTE 

TO THE SECOND VOLUME. 



It was the original object of The Pulpit axd Eostkum to fur- 
aish, through the assistance of skillful and expert Phonograph ers, 
accurate reports — clagTierreotvpe>, as it were — of such orations, lec- 
tures, sermons, etc., as are of the greatest public interest, and thus 
present to all, in a form suitable for preservation, specimens of the 
thought and style of our most celebrated public speakers. Thus 
would be secured and placed on record many discourses of present 
interest, and of great value for future reference, which otherwise 
would be lost to all but the immediate audience. This purpose of 
the publisher has been, and will continue to be, steadily kept in 
view. If, now and then, articles are i-qjiiMisJied, as in the case of 
"Webster's Reply to Ilayne" and "Jackson's Proclamation to 
South Carolina,'' in the present volume, it will be only to accom- 
modate a public demand for such republication. 

It shall bo our aim to make the future numbers of The Pulpit 
AND Eosteum worthy of the hearty support of all intelligent and 
educated persons, and to admit sucli matter only as shall command 
a choice place in every library. 

In presenting to the public this second volume, the publi^ller 
acknowledges his obligation to Andrew -T. Graham and Charles I>. 
Collar for the faithful manner in which their reports have been 
made, and also returns his thanks to the authors who have kindly 
assisted in making the work correct and complete while passing 
tl J rough the press. 

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